Sports & Entertainment Beat

With the Super Bowl coming up, it is important for brands looking to capitalize on football-themed promotions to remember that the terms “Super Bowl” and “Super Sunday” are registered trademarks guarded by the National Football League (NFL) more closely than a shutdown corner on a wide receiver. Because there is a fine line between permissible fair uses of Super Bowl and Super Sunday (e.g., in on-air banter and news and sports reports) and impermissible promotional uses that may infringe the NFL’s trademark, here are some guidelines to keep you from going “offsides:”

Simon Tam of the Asian rock band, The Slants, probably was not envisioning an 8-year-long legal battle when he chose the group’s name. Slant is known as a racial slur for Asians. Tam hoped to strip the term of its derogatory purpose and “reclaim” it by choosing it as a name for his Asian-American band, with hopes of giving it a sense of empowerment.[1] Tam’s attempt to trademark the name with the federal government failed. The U.S. Patent and Trademark Office (PTO) denied the application under the Lanham Act, 15 U.S.C. §1052(a), citing the registration as disparaging.[2] The provision prohibits registration of those marks that “consist of…matter which may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” [3] Tam contested the Trademark Trial and Appeal Board’s (TTAB) decision and the dispute eventually reached the Federal Court.

Benjamin Riesenberg is a former Garvey Schubert Barer legal extern who worked out of the firm’s New York office. He was a law student at Brooklyn Law School.

As the popularity of fantasy sports grows, so do the legal issues surrounding the industry.  The main legal challenges facing fantasy sports have been centered on the issue of whether pay-to-play fantasy sports contests constitute illegal gambling.  In 2006, Congress passed The Unlawful Internet Gambling Enforcement Act (“UIGEA”), which created certain guidelines for fantasy sports.  For a pay-to-play fantasy sports contest to be legal under the UIGEA, the fantasy sports game must have a result that is predominantly based on the knowledge of participants as opposed to mere chance.

As anticipated, the Trademark Trial and Appeal Board ("TTAB") decision of June 2014 cancelling six trademark registrations for the Washington Redskins team was appealed by Pro Football, Inc. In August 2014, Pro Football, Inc. filed a lawsuit in federal court against the five Native Americans involved in pursuing the TTAB cancellation in an effort to try to overturn the TTAB's holding that the term “Redskins” is offensive to Native Americans and thus is not eligible for trademark registration under the federal Lanham Act. Section 2(a) of the Lanham Act prohibits protection for terms that “may disparage” or bring people into contempt or disrepute. 15 USC §1052; TMEP §1203. On July 8, 2015, the US District Court for the Eastern District of Virginia ruled against Pro Football, Inc., affirming the TTAB's ruling that the REDSKINS marks do disparage Native Americans and that such a decision is not unconstitutional.

Deflategate has taken its well-deserved place in the annals of all-time sports infamy.  The recent allegations against Tom Brady have not only polarized NFL fans and players alike, but have given legal professionals reason for pause as to the manner in which the investigation was conducted and the burden of proof that was applied.  The mantra repeatedly used in the report filed by league investigator Ted Wells was “more probable than not.”  This burden of proof standard is akin to “by a preponderance of the evidence,” the burden of proof used in civil trials where a plaintiff only needs to convince a jury that his legal argument is more plausible than the defendant’s version, even if the percentage in his favor is only 51%.  Conversely, in criminal trials, the burden of proof that is applied is much more onerous given the higher stakes involved.  A prosecutor is required to prove his case “beyond a reasonable doubt” to merit conviction of the alleged offender.  One could reasonably argue that Ted Wells should’ve applied a raised burden of proof, equivalent to “beyond a reasonable doubt,” to implicate Tom Brady in this scandal, given the severity of the allegations and the erosive impact on the Rushmoreian legacy of arguably the greatest quarterback of his generation, if not in the history of the NFL.

On September 30, 2014, the Federal Communications Commission (FCC) released a statement repealing its sports blackout rule, a rule that the National Football League (NFL) has defended and relied on since 1975. The blackout rule strengthened the NFL’s own blackout policy, which prohibited local broadcast stations from televising a game that did not sell between 85% and 100% of its tickets at least 72 hours before kickoff. Similarly, the FCC rule prohibited cable and satellite operations from airing any game that was blacked out on local broadcast stations. Although the FCC’s rule applied to all sports, the NFL has not only relied upon it the most, but also fought the hardest to preserve the rule.

With high-profile deaths of iconic NFL players such as Junior Seau and Dave Duerson making headlines over the past couple years, the long-term health and well-being of NFL players has come to the forefront as the hot topic of the day.  Nowhere has this issue gained more notoriety and exposure than in the series of lawsuits filed against the NFL by retired players.

In a 2-1 ruling last Wednesday, June 18, the Trademark Trial and Appeal Board (TTAB) of the United States Patent and Trademark Office (USPTO) resolved an opposition proceeding in favor of five Native American plaintiffs who sought to cancel six trademark registrations that contain the word REDSKINS and are owned by Pro Football, Inc., the owners of the National Football League’s Washington, D.C. team.